DERRICK FOSTER v. TROY D. FRYE (L-3062-20 and L-7029-18, ESSEX COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1512-20
DERRICK FOSTER,
Plaintiff-Appellant,
v.
TROY D. FRYE and
CITY OF NEWARK,
Defendants-Respondents.
____________________________
HIPOLITO FELIX,
Plaintiff,
v.
DERRICK FOSTER,
Defendant-Appellant,
and
DERRICK FOSTER,
Third-Party Plaintiff,
v.
TROY D. FRYE and
CITY OF NEWARK,
Third-Party Defendants/
Respondents.
____________________________
Argued April 27, 2022 — Decided July 25, 2022
Before Judges Hoffman, Geiger, and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket Nos. L-3062-20 and
L-7029-18.
Christina Vassiliou Harvey argued the cause for
appellant (Lomurro, Munson, Comer, Brown &
Schottland, LLC, attorneys; Richard Galex, of counsel;
Christina Vassiliou Harvey, of counsel and on the
briefs).
Azeem M. Chaudry argued the cause for respondents
Troy D. Frye and City of Newark (Kenyatta K. Stewart,
Corporation Counsel, attorney; Emilia Perez, Assistant
Corporation Counsel, and Azeem M. Chaudry,
Assistant Corporation Counsel, on the brief).
PER CURIAM
Plaintiff Derrick Foster appeals a January 13, 2021 Law Division order
granting summary judgment dismissal in favor of defendants Troy Frye and the
City of Newark (the Newark defendants). The trial court determined that
dismissal of Foster's automobile negligence complaint against the Newark
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defendants was required by the plain language of N.J.S.A. 59:9-6, a provision
of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to -14. After carefully reviewing
the record, we are satisfied that N.J.S.A. 59:9-6 does not contemplate the
unusual circumstances presented in this appeal. We conclude that the negotiated
dismissal of a related counterclaim was not, in this unique context, a judgment
or settlement for purposes of that statutory provision. We therefore vacate the
grant of summary judgment dismissal and remand to the trial court for further
proceedings on plaintiff's action against the Newark defendants.
Because we presume the parties are familiar with the pertinent facts and
procedural history, we only provide a brief summary. Foster, an off-duty
Newark police officer, was injured in a motor vehicle accident involving an on -
duty Newark police officer, Frye. Frye was driving a police vehicle. Frye's
partner, Hipolito Felix, was in the passenger seat of the police vehicle.
The trial court found that on November 2, 2017, Frye "unexpectedly made
an improper U-turn" while in pursuit of a suspect who Frye and Felix believed
to be armed. The improper turn brought the police vehicle into the path of
Foster's privately-owned vehicle, which was traveling in the opposite direction.
Foster sustained serious injuries in the ensuing collision.
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On October 4, 2018, plaintiff brought suit against Frye in Essex County
Superior Court, claiming negligence, and against the city of Newark under the
principle of respondeat superior. We refer to this suit as the "major claim." On
March 15, 2019, the Newark defendants filed their answer.
On October 26, 2019, Felix filed a complaint against plaintiff, but not
against Frye. We refer to this action as the "minor claim." On March 4, 2020,
Foster filed an answer to Felix's complaint along with a third-party complaint
against the Newark defendants, demanding contribution in the event Foster was
found liable in the minor claim. That third-party complaint is important because
its eventual resolution as part of the settlement of Frye's lawsuit is at the center
of the present controversy.
We note that Foster's interests with respect to the minor claim suit were
represented by a different attorney than the one who represented him with
respect to the major claim. In the original action between Foster and the Newark
defendants, Foster was represented by a law firm that he had retained (Foster's
counsel). With respect to the minor claim, New Jersey staff counsel for Foster's
insurance carrier, Progressive Insurance Company (Progressive), represented
Foster's interests as to the claims made against him by Felix, but was actually
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defending Progressive's independent interests with respect to the minor claim.
We therefore refer to that attorney as Progressive's counsel.
On April 8, 2020, the Newark defendants jointly moved to consolidate
Foster v. Frye (the major claim) and Felix v. Foster (the minor claim). Foster's
counsel opposed the consolidation.
On April 24, 2020, the Essex County Assignment Judge entered an order
granting the Newark defendants' motion, consolidating the two lawsuits "into a
single action . . . for all purposes . . . [.]" Citing Moraes v. Wesler, that order
explained that "[h]ere, consolidation is appropriate because both actions arise
out of the same motor vehicle accident and involve the same parties. . . . Absent
consolidation of these actions for joint resolution, there is a risk of inconsistent
jury verdicts." 439 N.J. Super. 375, 379 (App. Div. 2015).
The same day the consolidation order was entered, Progressive's counsel
signed on Foster's behalf a stipulation of dismissal, with prejudice, of the minor
claim suit. In the settlement, filed May 11, 2020, "[i]t [was] stipulated and
agreed, by and between counsel for plaintiff, Hipolito Felix and counsel for
defendant, Derrick Foster that this action be dismissed as to defendant, Derrick
Foster with prejudice and without costs." The record shows that counsel
representing the Newark defendants had proposed that the dismissal on the
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minor case include a provision dismissing the third-party complaint against the
Newark defendants. We add that although the stipulation purports to have been
agreed to by counsel for Foster, in fact, the stipulation had been negotiated by
and agreed to by Progressive's counsel. So far as the record shows, Foster's
counsel played no role in the negotiations that resulted in the settlement of the
minor claim.
The resolution of the minor claim provided that Progressive would pay
Felix a nominal amount, $3,000, in consideration for his agreement to dismiss
his lawsuit. It also provided for the dismissal of the third-party contribution
claim against the Newark defendants raised in response to Felix's suit against
Foster. Foster received no compensation whatsoever from the settlement of the
minor claim.
On April 29, 2020, a notice of dismissal against the Newark defendants
was filed. The notice was captioned:
HIPOLITO FELIX, Plaintiff, v. DERRICK FOSTER,
et al. Defendants[] and DERRICK FOSTER, Third
Party Plaintiff, v. TROY D. FRYE, JR. and CITY OF
NEWARK, Third Party Defendants.
The notice stated:
Take Notice that the above Third-Party Complaint
against Troy D. Frye, Jr. and the City Of Newark is
hereby dismissed with prejudice and without costs."
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The notice of dismissal was signed by an attorney serving as counsel for
"Defendant/Third-Party Plaintiff, Derrick Foster." We reiterate and emphasize,
however, that the attorney who signed the stipulation was Progressive's counsel,
not Foster's counsel. So far as we can determine from the record, Foster's
counsel played no role in the negotiations resulting in the settlement of the minor
claim and was not noticed as to that settlement. The record shows that
Progressive's counsel sent an email notifying Newark's counsel of the settlement
with Felix, but Foster's counsel was not included among the email recipients.
As we have noted, the record also shows that Newark's counsel had first
proposed that the settlement of the minor claim include the dismissal of the
third-party claim against the Newark defendants.
The same day the notice of dismissal of the minor claim was filed, Felix
signed a "Release of All Claims Relating to a Lawsuit Filed Under Docket #
PAS-L-3380-19" in which he agreed to "give up any and all claims and rights
which [he] may have against [Foster] that are the subject of the lawsuit . . .
arising from an accident which occurred on [November 3, 2017], which action
has been or will be dismissed with prejudice." On July 31, 2020, the trial court
entered a consent order "dismissing the third-party complaint in the Passaic
matter and transferring the Passaic matter to Essex County[.]"
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On November 20, 2020, the Newark defendants moved for summary
judgment in the major claim action. The issue before the trial court was whether
the settlement dismissing with prejudice Foster's third-party contribution claim
against the Newark defendants as part of the minor claim lawsuit precluded
Foster from pursuing the major claim lawsuit against the Newark defendants by
operation of N.J.S.A. 59:9-6.
On January 13, 2021, the trial court heard oral argument on the summary
judgment motion, at the conclusion of which the court rendered an oral ruling
concluding that "the statute provides a complete bar to recovery to the plaintiff."
The judge concluded that the settlement of the minor case (against Foster) means
the major case (against the Newark Defendants) is barred by the plain language
of N.J.S.A. 59:9-6. The court therefore found that "the notice of dismissal [of
the minor case] is . . . a judgment on the merits that carries preclusive effect as
to the major case [against the Newark defendants]."
On January 13, 2021, following oral arguments, the court entered an order
and accompanying four-page Statement of Reasons granting the Newark
defendants' motion for summary judgment and dismissing plaintiff's complaint
against the Newark defendants with prejudice. The statement of reasons
explained in pertinent part:
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The court agrees with [Newark] [d]efendants that the
statute provides a complete bar to recovery for
[p]laintiff. Even viewing the facts in a light most
favorable to [p]laintiff, it cannot be said that any of
plaintiff's arguments in opposition are enough to defeat
the recovery bar contemplated by the statute. When
[p]laintiff settled the claims with Hipolito Felix and
dismissed—voluntarily—his claims against
[d]efendants, the statute became effective, thus barring
the claims at issue today. The two cases indeed arise
out of the same set of operative facts, leading to the
consolidation that was granted by Judge Floria and is
not being challenged today. The minor case has settled
and thus, the major case is barred under N.J.S.A. 59:9-
6.
In support of this conclusion, the court finds that
the notice of dismissal is a judgment on the merits that
carries preclusive effect as to the major case. Gimenez
v. Morgan Stanley DW, Inc., 202 F. App'x 583, 584 (3d
Cir. 2006); see also Negron v. Donna, No. CIV09-
0807(FSH)(PS), 2010 WL 10501463 at 3 (D.N.J.
March 19, 2010). The court is not convinced by
[p]laintiff's argument that the statute does not apply to
third-party claims or claims for contribution and
indemnification, or that the thrust of the statute is
guided by an intent to prevent double recovery by a
party. Indeed, the statute makes no distinction as to
whether the underlying determination is in favor of the
claimant. Plaintiff has pursued its remedy and after a
determination on the merits (the notice of dismissal),
this court is not willing to give it the proverbial "second
bite at the apple."
This appeal followed. Foster raises the following contentions for our
consideration:
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POINT I
THE TRIAL COURT'S CONSTRUCTION OF THE
NEW JERSEY TORT CLAIMS ACT WAS
ERRONEOUS AND VIOLATED THE PLAIN
LANGUAGE OF THE STATUTE.
POINT II
THE TRIAL COURT'S RELIANCE ON FEDERAL
PRECEDENT WAS ERRONEOUS.
POINT III
THE TRIAL COURT MISCONSTRUED THE
ENTIRE CONTROVERSY DOCTRINE AS
BARRING FOSTER'S CONSOLIDATED CLAIMS.
POINT IV
THE TRIAL COURT'S CONSTRUCTION OF THE
STATUTE IS ERRONEOUS BECAUSE IT LED TO
AN ABSURD RESULT.
Our review of a trial court's summary judgment order is de novo. Templo
Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,
199 (2016) (citing Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524
(2012)). Accordingly, the trial court's analysis is not entitled to any special
deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995).
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We apply the same standards as the trial court when reviewing an appeal
of an order granting summary judgment. Walker v. Atl. Chrysler Plymouth,
Inc., 216 N.J. Super. 255, 258 (App. Div. 1987). Summary judgment should be
granted when the pleadings and discovery show "that there is no genuine issue
as to any material fact challenged and that the moving party is entitled to a
judgment or order as a matter of law." R. 4:46-2(c). A genuine issue of material
fact exists when the discovery materials, "viewed in the light most favorable to
the non-moving party, are sufficient to permit a rational factfinder to resolve the
alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995).
The Supreme Court has clearly stated that "[t]he overriding goal of all
statutory interpretation 'is to determine as best we can the intent of the
Legislature, and to give effect to that intent.'" State v. S.B., 230 N.J. 62, 67
(2017) (quoting State v. Robinson, 217 N.J. 594, 604 (2014)). As a result, "[t]o
determine the Legislature's intent, we look to the statute's language and give
those terms their plain and ordinary meaning because 'the best indicator of that
intent is the plain language chosen by the Legislature[.]'" State v. J.V., 242 N.J.
432, 442–43 (2020) (first citing DiProspero v. Penn, 183 N.J. 477, 492 (2005);
and then quoting Johnson v. Roselle EZ Quick, LLC, 226 N.J. 370, 386 (2016)).
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Accordingly, "[i]f, based on a plain and ordinary reading of the statute,
the statutory terms are clear and unambiguous, then the interpretative process
ends, and we 'apply the law as written.'" Id. at 443 (quoting Murray v. Plainfield
Rescue Squad, 210 N.J. 581, 592 (2012)). It is inappropriate for "[a] court . . .
[to] rewrite a plainly[ ]written enactment of the Legislature [or to] presume that
the Legislature intended something other than that expressed by way of the plain
language." Ibid. (second alteration in original) (quoting O'Connell v. State, 171
N.J. 484, 488 (2002)). However, "[i]f . . . the statutory text is ambiguous,
[courts] may resort to 'extrinsic interpretative aids, including legislative history,'
to determine the statute's meaning." Ibid. (quoting S.B., 230 N.J. at 68).
Furthermore, "[c]ourts may also consider extrinsic evidence if a plain reading
would lead to an absurd result or if the overall statutory scheme is at odds with
the plain language." State v. Bishop, 429 N.J. Super. 533, 547 (App. Div. 2013)
(citing DiProspero, 183 N.J. at 493).
N.J.S.A. 59:9-6 reads:
a. Where a claimant has pursued his [or her] remedy
against a public entity for a claim arising out of the act
or omission of a public employee of a public entity, a
judgment or settlement shall be a complete bar to suit
against the employee in a claim arising from the same
subject matter.
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b. Where a claimant has pursued his [or her] remedy
against a public employee for a claim arising out of the
act or omission of a public employee of a public entity,
a judgment or settlement shall be a complete bar to suit
against the entity in a claim arising from the same
subject matter.
We agree with the trial court that the language of the statute is clear and
unambiguous. The narrow issue before us, then, is whether the resolution of the
minor claim by settlement, which includes the dismissal of the third-party claim
against the Newark defendants, was a judgment or settlement within the meaning
of the statute. In these unusual circumstances, we conclude it was not because
in practical effect, the settlement of the minor claim was between Felix and
Progressive and because Foster's own attorney did not participate in the
settlement negotiations to represent his interests, which were independent of the
interests of the insurance carrier. 1
1
We note that neither party asserts Progressive was required to obtain Foster's
approval to settle the minor claim. See Am. Home Assur. Co., Inc. v. Hermann's
Warehouse Corp., 117 N.J. 1, 7, 10 (1989) (holding that, although "[t]he nature
of the relationship . . . require[s] an insurer to exercise good faith in its dealings
with the insured, particularly when the insured's money or other interests —for
example, reputation—may be at risk[,]" where policy includes no consent to
settle clause, insurer does not violate duty of good faith simply by settling claim
without consent of insured); see also Webb v. Witt, 379 N.J. Super. 18, 35 (App.
Div. 2005) (concluding that "so long as the insurer does not procure a settlement
in bad faith, it has not violated its fiduciary duties to its insureds solely by
adherence to a policy that does not employ a consent to settle clause.").
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Although the major and minor claims in this case were consolidated "for
all purposes," we do not believe N.J.S.A. 59:9-6 provides that a lawsuit brought
by an individual against a government entity is precluded by a settlement or
judgment pertaining to another lawsuit arising from the same incident that was
settled by an insurance carrier pursuant to negotiations that protected only its
own independent interests and where those settlement negotiations did not
include the attorney representing the individual who brought the primary lawsuit
against the government entity. We add that, in this case, it appears that counsel
for Newark influenced the terms of the settlement agreement between Felix and
Progressive.
As we see it, the quarrel in this case is not about the plain meaning of the
statute but rather the intended effect of the consolidation of the two lawsuits and
the impact of that consolidation on the rights of the individual who first brought
suit against the government entity and its employee. Cf., Viviano v. C.B.S., 101
N.J. 538, 546, 556 (1986) (relaxing the "mechanical application" of the statute
of limitations, N.J.S.A. 2A:14-2, noting that to "do otherwise would permit
concealment and technicality to triumph over the interests of justice"); see also
State v. Marshall, 173 N.J. 343, 354 (2002) (recognizing the Court has
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repeatedly emphasized "[t]he importance of striking a balance between the
competing interests of finality of judgments and fundamental fairness").
In this instance, we doubt that the Assignment Judge would have granted
the motion for consolidation had he been apprised that the practical and nearly
immediate effect of the consolidation would be to terminate the major claim or
else discourage the independent resolution of the minor claim. Nor do we
believe that the trial court would have accepted the settlement of the minor claim
without soliciting input from Foster's counsel had the court been apprised that
the immediate effect of that settlement would be to categorically preclude Foster
from pursuing a non-frivolous negligence action against the Newark
defendants.2 We thus conclude that the interests of justice require that we vacate
the grant of summary judgment dismissal in favor of the Newark defendants.
In view of our holding to vacate the order of summary judgment dismissal
of the major claim, we need not remand for the trial court to conduct a hearing
and to make findings on whether the motion for consolidation and the nearly
simultaneous stipulation regarding the minor claim were deliberately structured
2
As we noted, the trial court stated that Frye had "unexpectedly made an
improper U-turn" in the marked police vehicle leading to the collision.
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by the participating attorneys to trigger N.J.S.A. 59:9-6 and thereby preclude
Foster from pursuing the major claim. We do not retain jurisdiction.
Reversed and remanded.
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